Experts spar over government plan to legalize random breath tests for drivers

The Commons justice committee is back studying Bill C-46, one of two bills introduced by the government last spring to usher in the legalization of marijuana

The federal government says too many impaired drivers are able to slip through roadside checkpoints undetected, and points to studies showing large declines in road deaths under mandatory screening in other countries.Getty Images

Does it violate a driver’s rights for police to demand a breath sample without needing any reason to suspect they’ve been drinking? Legal experts disagreed on Monday, as they gave testimony on the government’s proposed new law to crack down even further on drunk driving.

Speaking to MPs, the Canadian Bar Association and the Canadian Civil Liberties Association denounced the proposal for mandatory screening, which would allow police to demand a breathalyzer sample without needing a reasonable suspicion the driver has been drinking.

“It is in essence random testing, and we view this as a violation of section eight of the Charter, and believe that it would not withstand constitutional challenge,” said Kathryn Pentz of the Canadian Bar Association, referring to the section that protects Canadians from unreasonable search or seizure.

But Peter Hogg, one of Canada’s foremost constitutional scholars, argued mandatory screening would “easily” comply with the Charter’s allowance for reasonable restrictions on rights.

“It seems to me that concerns about road safety are such that steps like random breath testing would be accepted as reasonable, because they’re directed of course at adding some more regulation to what is already a highly regulated activity,” he said. “And it’s a highly regulated activity because it’s a dangerous activity.”

After a summer break, the House of Commons justice committee is back studying Bill C-46, one of two bills introduced by the government last spring to usher in the legalization of marijuana. The bill toughens Canada’s impaired driving laws, and allows police for the first time to conduct a roadside saliva test for drug impairment.

Critics have highlighted two potential problems with the bill: the concerns around the reliability of roadside drug screening, and the constitutional concerns around mandatory roadside screening. (Only alcohol testing is proposed to be subject to mandatory screening, not drug testing.)

The government says too many impaired drivers are able to slip through checkpoints undetected, and points to studies showing Australia, New Zealand and Ireland have seen large declines in road deaths under mandatory screening.

Robert Solomon, a Western University law professor and the national legal director of Mothers Against Drunk Driving, strongly supported the bill’s provisions.

“Canada’s per-capita rate of alcohol-related crash deaths is almost five times that of Germany, even though Canadians consume 33 per cent less alcohol,” he told the committee. “They drink more, we die more.”

He said there is ample evidence that countries with mandatory screening are able to substantially reduce impaired driving deaths.

“Rather than overburdening the courts, as has been suggested by some people, the introduction of mandatory alcohol screening in Ireland was the major factor in impaired driving charges dropping from 18,500 in 2006 to 6,000 in 2015,” he told the committee.

The government has previously released its own analysis that argues the bill complies with the Charter, describing mandatory breath samples as “simply information about whether a driver is complying with one of the conditions imposed in the highly regulated context of driving.”

But along with the constitutional concerns, there is debate over whether mandatory screening would have a disproportionate effect on racial minorities. The Canadian Civil Liberties Association said there are studies showing drivers of some races are pulled over by police more often than others.

“For those individuals who tend to be singled out disproportionately, the breath demand here in a so-called routine stop would frequently be experienced as humiliating and degrading,” said the CCLA’s Roberto De Luca.

He said that, at the very least, restricting mandatory screening to stationary checkpoints that all drivers pass through would reduce the concern about racial profiling.

The proposed legislation is not the only move underway to toughen impaired driving laws.

Justice Minister Jody Wilson-Raybould is considering lowering legal blood alcohol limits for drivers from the current .08 per cent to .05 per cent, as in some European countries. She recently asked provincial justice ministers for feedback on the idea.

Ontario’s government, meanwhile, announced on Monday it would be increasing the fines on impaired driving, and introducing new fines and other penalties for drug-impaired driving.